1. This is a defendant's application against an order passed by the Subordinate Judge of Allahabad, dated 16th August 1934. restoring the plaintiff's suit on condition that the plaintiff should pay Rs. 200 as costs to the defendant. The application is made on the ground that the Court had no jurisdiction to restore the suit which had been dismissed on 10th April 1934. The circumstances which led up to these proceedings are as follows: A. suit was filed in forma pauperis in 1932 by two plaintiffs, Dukhi and Bhola who were father and son. This suit was one relating to property valued at over two lacs of rupees, and it was against the widow of one Bisheshar, deceased, on the ground that the plaintiffs were entitled to the property for reasons with which we are not now concerned. The application to sue in forma pauperis was allowed, issues were struck on 27th April 1933 and the dates fixed for final hearing were December the 4th to 7th 1933. In the meanwhile the plaintiff had applied on 15th August 1933 for the appointment of a receiver, but this application was rejected in October. An appeal was made against that order, which is now pending before this Court as F.A.F.O. No. 188 of 1933. In connection with this appeal the record of the suit was sent to the High Court. But on the defendant's application, it was ordered to be sent back to the trial Court in order that the original suit should proceed. On 28th, November both plaintiffs applied for an adjournment of the suit from the date fixed for final disposal, namely, 4th December, on the ground that the record was in the High Court, and other reasons were also given. This application was allowed, and the suit was Adjourned until 9th April 1934.
2. In the meanwhile however on 4th December 1933 Dukhi died. His son, Bhola, made an application on the last day allowed him by the law of limitation, namely, 5th March 1934, to be brought on the record in his place as survivor. Notice was issued to the opposite party, but on 5th April the Court passed an order to the effect that as Bhola was the son of Dukhi, all that it was necessary to do was to strike off Dukhi's name so that Bhola could proceed atone in his own right. It may be mentioned that one of the arguments on behalf of the opposite party is that Dukhi and Bhola had sued not, only as a joint family entitled as such, to succeed to the property but also individually as reversioners to Bisheshar. It has been suggested therefore that the Court was wrong in ordering that it was only necessary to strike off the name of Dukhi, because it was also necessary to implead Bhola anew as the representative of Dukhi In his capacity as a reversioner. Bhola made another application on 28th March 1934 for the postponement to the hearing, of the suit. This was refused, but Bhola made another application on 7th April 1934, which was ordered to be put up on the date fixed for the hearing of the suit.
3. On that date - the 9th April - the plaintiff's advocate appeared and filed an application for the further postponement of the proceeding. This was-rejected, and the advocate stated that he had no further instructions. It should be mentioned that the application was signed not only by the advocate, but by the plaintiff, Bhola, himself. The order on the order sheet was. that the case should be put up on the following day for delivery of judgment and on the following day the Court passed an order in the following form. First the cases of the parties were stated at length and the issues were given in detail. The order then proceeds:
Findings : In December 1933, plaintiff 1 died leaving his son, plaintiff 2, as the sole survivor. Owing to the death of plaintiff 1, hearing fixed for 4th December 1933 was adjourned to 9th April 1934. The plaintiff asked for adjournment to 9th April 1934. The plaintiff ' asked for adjournment again, which was refused. The plaintiff and his counsel then absented. The contesting defendant has brought three counsel practising in the High Court, including Dr. Asthana. The case is dismissed for default with costs of the contesting defendant.
4. It should be added that a decree was prepared on the basis of this order, and in the decree it is stated that the suit is dismissed for want of prosecution. The order against which the present application has been made is a subsequent order passed by the same Subordinate Judge, restoring the suit which was dismissed by the order of the 10th April. This later order does not give any reason for restoring the suit, except that the decision was not a decision on the merits:
Looking at my judgment of 9th April 1934, I can say that it was not a decision on the merits. The pleadings and issues were given simply to enable the superior Court to apprehend, the case in which that order was made. No decision on the issues was made.... The inconvenience to the defendant can be compensated by awarding damages Considering the entire circumstances I would restore the suit on the plaintiff paying Rs. 200 as costs of the defendant.
5. The rule of the Civil Procedure Code under which the suit was restored was not quoted at all. But it has been argued on behalf of the applicant by Dr. Asthana that, in the circumstances, it must be held that the order was passed under Rule 3, Order 17. Under that order the Court may either adjourn the hearing or 'proceed to decide the suit on the merits,' and it is therefore argued that whatever the Court believed when the matter came before it on 16th August 1934, the order of 10th April was one that was passed under this rule, and that it was a decision on the merits. We have been referred on behalf of the applicant to two recent decisions of this Court. In Baldeo Singh v. Chhaju Singh 1931 All. 703, it, was held in circumstances like the present, that is to say where a pleader appears and applies for adjournment and the Court refuses to grant an adjournment, that the decision of the Court is on the merits and a decree. Again in Manmohan Das v. Krishna Kant 1933 All. 41, it was held in similar circumstances to those in the present case that the order had been passed under Order 17, Rule 3, that it amounted to a decree, and that the plaintiff's remedy was either by way of review or appeal and not by way of an application for the setting aside of the decree and for the restoration of the suit.
6. Mr. Ramnama Prasad has attempted to support the order of the learned Subordinate Judge in an ingenious and elaborate argument. He has approached the case from three point's of view, which may be dealt with separately. In the first place, he argues that Order 17, Rule 3 does not apply to the order of April the 10th. The adjournment to that date, it is suggested, was made by the Court because the record of the suit was in the High Court and it was necessary to postpone the proceeding apart entirely from any application that may have been made by the plaintiff, Rule 3, however, is to the following effect:
Where any party to a suit to whom time has been granted fails without reasonable excuse, to produce his evidence or to cause the attendance of his witnesses or to...perform any act necessary to the further progress of the suit, the Court may proceed under the rule.
7. We have no doubt from the history of the circumstances of the case given above that the adjournment was made on the application of the plaintiff, and although the Court may have had a variety of reasons for allowing the adjournment, there was no doubt that it was the plaintiff who moved the adjournment, and that it was necessary for the plaintiff to cause the attendance of his witnesses and to proceed with the suit on the adjourned date, and that it was on account of Bhola's default to do so that the order was passed. A further argument under this heading relates to Bhola's status not only as a member of a joint family, the right of which to sue survived the death of Dukhi, but also as the successor of Dukhi in his capacity of re-versioner. It is argued that looked at from this point of view, the suit was in abeyance from the 4th December, when Dukhi died, until 5th April, when the order of the Court was passed directing Dukhi's name to be expunged from the record. This is an argument however that applies rather to the merits of the question of whether an adjournment should have been allowed, and might be considered if the matter before us were on appeal; but it has no force in an application for revision.
8. The second point of view which has been pressed before us is that Rule 3, Order 17 might properly have been applied by the learned Judge, but that as a matter of fact he did mot apply it. For this argument there appears to be some support in the wording of the order against which the present application is made. We have already quoted the words, which show that the Judge believed, when he passed this order, that his former order was not a decision on the merits. We have however quoted authority, on behalf of the applicant to show that such an order does amount to a decision on the merits, and if this was so, it was not open to the Judge to reconsider the matter on the later date and to change his mind. We are asked to believe that in his order of 10th April the Judge really did act under the provisions of Order 9, and we have been referred to the case of Panna Lal v. Basdeo 1933 All. 118, in which a Bench of this Court in dealing with a matter very similar to the present one remarked as follows:
The Assistant Collector did not make any reference in that order to the evidence that had already been produced in the case. Ha did not by that order examine the merits of the plaintiff's claim, nor did he deal with the validity or otherwise of the defence raised by the congesting defendant. Ho clearly in that order expressed himself as dismissing the suit for want of prosecution. Such a decision cannot be characterized as a decision on the merits.
9. If we were to follow the decision or that Bench, we should be bound therefore to hold that the decision was not one on the merits, because the Judge did not examine the merits of the plaintiff's claim, nor deal with the validity of the defence raised. On the contrary, he dismissed the suit for default on the ground that the plaintiff asked for a further adjournment, which was refused, and that he had then absented himself with his counsel. The Bench continuing with the reasoning towards the end of their judgment have remarked that as Order 17, Rule 3 did not apply, the only other rule in the Code under which the order could be passed was Rule 8, Order 9, Civil P.C. and held that the Court must therefore have passed its order Under that rule. The learned Judges however go on to show that as the plaintiff's counsel was present, such an order, that is to say an order dismissing the suit under the provisions of Order 9, would not have been in accordance with law, but they refused to interfere in revision on the ground that the only result of the order of the lower Court would be that there would now be a decision on the merits.
10. We are left to decide between the authority of this decision and that of the Benches in the cases reported in Baldeo Singh v. Chhaju Singh 1931 All. 703 and Manmohan Das v. Krishna Kant 1933 All. 41, which have held that in a case 'like the present Order 17, Rule 3, will apply, and that a decision like that passed by the Subordinate Judge on 10th April may amount to a decision on the merits. We think that it would be preferable to hold that such a decision is one on the merits, even though the evidence and arguments on behalf of the parties may not have been discussed, than to hold that a suit has been dismissed for non-appearance of the plaintiff when as a matter of fact the plaintiff has actually appeared both by counsel and in person, and our decision from this point of view is that not only does Order 17, Rule 3 cover the circumstances of the case, but that the Subordinate Judge did actually apply that rule on 10th April 1934, though in his subsequent order, namely the one which is now the subject of this application, lie either changed his mind or forgot the circumstances in which he passed the earlier order.
11. The third point of view is that even if the provisions of Order 17, Rule 3 applied to the present case, and the Court was technically wrong in restoring the suit, it is not necessary now for us to revise that order for the reasons that have been given in Panna Lal v. Basdeo 1933 All. 118, namely, that there has been no miscarriage of justice and that the only effect of the order will be that the plaintiff's suit will now be heard on the merits. We do not think however that there are any equities in favour of the opposite party. It seems quite clear that Dukhi and Bhola were acting together and that between them, they had been working to delay the hearing of the suit for the purpose of keeping the defendant out of possession of the property, if possible, by the appointment of a receiver. The learned Subordinate Judge himself in his order which is the subject of this application has remarked that the plaintiff was making frantic efforts to obtain adjournments of the hearing without any reasonable grounds and' that he failed, without reasonable excuse, to produce his evidence; so that it appears that even if the matter had been one with which he could deal under Order 9, there would have been no grounds whatever for allowing the restoration of the suit under Rule 8 of that Order, nor was he called on in any way to make use of the inherent powers of the Court under Section 151. The Court had to. decide the matter with due regard to the provisions of Rule 3 of Order 17 - and it is clear from, his order that there were no good grounds for allowing an adjournment - or to proceed to deal with the suit on the merits, and he chose the latter course, That order having been duly passed and having been embodied in a decree, the same Judge had mo jurisdiction whatever 4 months later to recall the order for merely arbitrary reasons as he has done in the present case. We think therefore that it is necessary to interfere, and we therefore allow the application with costs, set aside the order of the Subordinate Judge and direct that the original order passed by the Judge on 10th April dismissing the suit be restored.
12. It has been brought to our notice that after the order of 10th April had been passed, the plaintiff filed an appeal in the High Court, but that before this came up for admission in forma pauperis the suit had been restored by the trial Court. The position of the plaintiff of course was completely altered by the order restoring the suit, and if there is no provision of law to prevent his proceeding with the appeal, we see no reason by he should not be allowed to do so.